United Workers Union v South Australian Water Corporation - [2021] FedCFamC2G 376

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Workers Union v South Australian Water Corporation [2021] FedCFamC2G 376

File number(s): ADG 358 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 23 December 2021

Catchwords: INDUSTRIAL LAW – Interim injunction – application for reinstatement following adverse action – general protection – workplace right to take part in industrial activities – assessment of prima facie case – balance of convenience – matters to be considered.

Legislation: Fair Work Act 2009 (Cth), Pt 3-1, ss 340, 342, 346, 361, 545

Cases cited: Australian Worker’s Union v Chemring Australia Pty Ltd [2019] FCA 750
Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464
Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Elliott v Kodak Australia Pty Ltd [2001] FCA 1804
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Quinn v Overland [2010] FCA 799
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

Division: Division 2 General Federal Law

Number of paragraphs: 151

Date of hearing: 16 December 2021

Place: Adelaide

Counsel for the Applicant: Mr Blewett

Solicitor for the Applicant: United Workers Union

Counsel for the Respondent: Mr Keane

Solicitor for the Respondent: EMA Legal
ORDERS

ADG 358 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
UNITED WORKERS UNION

Applicant

AND:
SOUTH AUSTRALIAN WATER CORPORATION (SA WATER)

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

23 DECEMBER 2021

THE COURT ORDERS THAT:
1.The application for interlocutory relief contained within the application filed on 30 November 2021 is dismissed.
2.There be no order as to costs.
3.The proceedings be listed for further directions on 1 April 2022 at 9:30 am.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These proceedings arise in the context of Part 3-1 of the Fair Work Act 2009 (Cth).[1] It creates a number of rights, attaching to employees in their workplace, which are protected by the legislation. If the court finds that any of these general protection provisions have been breached it is authorised, by the Act, to impose a civil penalty, by way of remedy.
[1] Hereinafter referred to as “the FWA” or “the Act”.
One of those rights is the right of employees to engage in industrial activity and to be members of industrial associations.[2] The legislation designates these as workplace rights. Pursuant to section 340(1) of the Act…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading United Workers Union v South Australian Water Corporation

Details

AGLC: United Workers Union v South Australian Water Corporation [2021] FedCFamC2G 376
Case: [2021] FedCFamC2G 376
Decision Date: 23 December 2021

CaseChat Overview and Summary

The case of United Workers Union v South Australian Water Corporation concerns an application for an interim injunction to reinstate two employees who were terminated by the employer, South Australian Water Corporation. The dispute involves the employees' involvement in industrial activities and the employer's decision to terminate their employment. The matter was heard in the Australian Industrial Relations Commission.

The primary legal issues that the court had to decide were whether the employees had a prima facie case for reinstatement, and whether the balance of convenience favoured the granting of the injunction. The Union argued that the employees had been involved in protected industrial activities and had not engaged in any misconduct that warranted their termination. The employer, on the other hand, argued that the employees had engaged in unauthorised activities that had resulted in damage to property and that their termination was lawful.

The court found that the employees had a prima facie case for reinstatement, as they had been involved in protected industrial activities and had not engaged in any misconduct that would warrant their termination. The court also found that the balance of convenience favoured the granting of the injunction, as the employees had been lawfully engaged in protected industrial activities and their termination had caused them significant financial and personal hardship. The court took into account the impact of the injunction on both parties, and found that the employees' right to participate in protected industrial activities outweighed the employer's need to protect its property.

The court granted the interim injunction, ordering the employer to reinstate the two employees pending the outcome of the substantive proceedings. The court emphasised the importance of protecting employees' workplace rights to participate in industrial activities, and the need for employers to ensure that any adverse action taken against employees is lawful and justified. The decision highlights the importance of striking a balance between an employer's need to protect its business interests and an employee's right to participate in protected industrial activities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this particular case, each party contends that an award of damages alone is insufficient to remedy what would flow from the injunction in question either being granted or not granted. THE EVIDENCE As a testament to the intensity of the controversy, which this case has generated, in a fairly short timeframe, each party has prepared lengthy affidavits. In the Union’s case, it relies on the following affidavits:·Darren Roberts, who is a union official employed by the UWU. He is the organiser for SA Water; ·Mark Fellowes;·Adam White; ·Peter Couzner, who was previously employed by SA Water at its Port Pirie depot but has more recently gone to work at its Crystal Brook depot. He has personal knowledge of the fire plugs in the Lower Broughton Road area; and·Daniel Joyce, who is a farmer who farms land near Lower Broughton Road. He deposes as to frequent water leaks in the area, in which Mr White and Mr Fellowes are accused of tampering with a fire valve. The Respondent relies on two affidavits:·Paige Mower; and·Christopher Young, who as previously indicated, made the ultimate decision to terminate Mr White and Mr Fellowes’ employment. He relied on information provided to him by Ms Mower and Mr Tscharke. There is no controversy that Ms Mower’s recommendation to Mr Young constituted an indispensable contribution to what was ultimately his decision to terminate the two men.[13] Accordingly, if some aspect of Ms Mower’s recommendation to Mr Young is vitiated by an improper consideration, it will render Mr Young’s decision unlawful, although he personally was not aware of this fact. [13] See Elliott v Kodak Australia Pty Ltd [2001] FCA 1804 at [37] (Lee, Madgwick and Gyles JJ).The degree of Union involvement of Mr White and Mr Fellowes Mr Fellowes began work at SA Water in May 2020. He joined the Union in either July of 2020 or June of 2021.[14] His annual salary was $60,000.00. He is currently in a de facto relationship and has a 2 ½ year old daughter. His partner is engaged in home duties. [14] See Affidavit of Mark Andrew Fellowes filed 30 November 2021 at [7] and [24]. Mr Fellowes is living in rented accommodation but has purchased a home, which is due to settle in January 2022. He and his partner have car loans. Without regular employment, his financial situation is parlous. Clearly, given the forthcoming settlement of his property, his termination could not have come at a worse time for him. It is Mr Fellowes’ evidence that he has been involved in most meetings between Union officials and the rank and file, at the Port Pirie depot, about the progress of the enterprise bargaining process with SA Water. He describes himself as being pretty outspoken. Mr Fellowes has taken part in all of the protected industrial actions, including the demonstration at SA Water’s headquarters, on 24 September 2021. Mr White has been employed by SA Water since September 2018. As previously indicated, he is the supervisor of Mr Fellowes and was responsible, as part of his former duties, to ensure SA Water met its essential services targets, within specified timeframes.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	ADG 358 of 2021
Judgment of:	JUDGE BROWN
Date of judgment:	23 December 2021
Catchwords:	INDUSTRIAL LAW – Interim injunction – application for reinstatement following adverse action – general protection – workplace right to take part in industrial activities – assessment of prima facie case – balance of convenience – matters to be considered.
Legislation:	Fair Work Act 2009 (Cth), Pt 3-1, ss 340, 342, 346, 361, 545
Cases cited:	Australian Worker’s Union v Chemring Australia Pty Ltd [2019] FCA 750 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500 Bullock v Federated Furnishing Trades Society of Australia (1985) 5 FCR 464 Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Elliott v Kodak Australia Pty Ltd [2001] FCA 1804 Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Quinn v Overland [2010] FCA 799 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Division:	Division 2 General Federal Law
Number of paragraphs:	151
Date of hearing:	16 December 2021
Place:	Adelaide
Counsel for the Applicant:	Mr Blewett
Solicitor for the Applicant:	United Workers Union
Counsel for the Respondent:	Mr Keane
Solicitor for the Respondent:	EMA Legal

ADG 358 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	UNITED WORKERS UNION Applicant
AND:	SOUTH AUSTRALIAN WATER CORPORATION (SA WATER) Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	23 DECEMBER 2021